Does the noncustodial father’s child support obligation extend to paying for orthodontic treatment or braces in Virginia?
In Barrett v. Kantz, Record No. 2506-09-1 (2010), the Court of Appeals of Virginia, ruled that child support can be modified to include orthodontic expenses if such expenses are reasonable and necessary.
In Barrett, the parties were divorced in Virginia after twelve years of marriage. The father was awarded primary physical custody of the two children of the marriage for the first four years after the divorce, until the court ordered a change in primary physical custody to the mother due to visitation conflicts. By an agreement of the parties, the mother would not receive child support for a year. After three months, the mother filed a motion to amend or review child support in the Juvenile and Domestic Relations District Court, which was denied. The mother then appealed to the Virginia Circuit Court for a de novo hearing, as provided by Virginia Code Section 16.1 – 296. The mother sought child support and the children’s orthodontic expenses. Section 20-108.2(D) of the Code of Virginia provides that a child support order shall provide that the parents pay, in proportion to their gross incomes, for the reasonable and necessary unreimbursed medical and dental expenses in excess of $250 per calendar year for each child (the custodial parent being responsible for the first $250 as included in basic child support). The divorce court judge received evidence documenting the need for orthodontic treatment or braces for both children. After considering the orthodontist recommendation, the Circuit Court judge found that the older child’s need for orthodontic work was “more urgent” than that of the younger child. Additionally, the Virginia Circuit Court judge found that orthodontic treatment for the younger child was not “urgently needed or compelling at this time such as to justify an additional expenses at this time.” Since the mother failed to show that the younger child’s orthodontic expenses were reasonable and necessary as required under Virginia Code § 20-108.2(D), the trial court ordered the father to pay for only the older child’s orthodontic treatment and not for the younger child’s. The mother appealed the Circuit Court order on the grounds that the judge did not award support retroactively, did not allow orthodontic expenses for the younger child, and did not calculate correctly the father’s share of the cost of braces for the older child.
On appeal, the Virginia Court of Appeals restated the mother’s burden on appeal of proving the trial court’s factual findings were plainly wrong or without evidence to support them, citing Jennings v. Jennings, 12 Va. App. 1187, 1189, 409 S.E.2d 8, 10 (1991) and Virginia Code Section 8.01-680. The mother had the burden of proving to the trial judge that the unreimbursed medical expenses were reasonable and necessary. The Virginia Court of Appeals also recognized that the trial court had the discretion as to whether to make a modification of child support effective while a petition is pending. The Virginia Court of Appeals ruled that in Barrett that the trial court did not err in construing the orthodontist’s recommendation. The orthodontist noted that because of the older child’s age, treatment should begin “relatively soon.” While treatment for the younger child was “recommended,” there was no indication that it was “necessary.” Relying on the orthodontist report, the trial court made a factual determination that the younger child’s treatment was not necessary. The Virginia Court of Appeals held that the trial court did not err as a matter of law in making such a determination. The court did rule that the father’s share of the cost of orthodontic treatment had been miscalculated by the Circuit Court judge, and therefore reversed and remanded the case for a new calculation.
You should consult with your Virginia divorce lawyer to discuss whether orthodontic expenses or braces for your child qualify as necessary and reasonable medical expenses payable as child support.